and through william tucker as d.c....

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

ESTATE OF C. DELORES TUCKER, byand through William Tucker asPERSONAL REPRESENTATIVE; andWILLIAM TUCKER individually,

Plaintiffs-Appellants, No. 05-56045v. D.C. No.

CV-99-03679-RMTINTERSCOPE RECORDS, INC.; DEATH

ROW RECORDS, INC.; CHARLES B.ORTNER; PAUL, HASTINGS, JANOFSKY

& WALKER, LLP,Defendants-Appellees.

ESTATE OF C. DELORES TUCKER, byand through William Tucker asPERSONAL REPRESENTATIVE; and No. 06-55376WILLIAM TUCKER individually,

D.C. No.Plaintiffs-Appellants, CV-99-06129-RMTv.OPINIONDAVID KENNER; GEOFFREY THOMAS;

JACK PALADINO; PAUL PALADINO,Defendants-Appellees.

Appeal from the United States District Courtfor the Central District of California

Robert M. Takasugi, District Judge, Presiding

Argued and SubmittedMay 11, 2007—Pasadena, California

Filed February 8, 2008

1787

Before: John T. Noonan, Richard A. Paez, andRichard C. Tallman, Circuit Judges.

Opinion by Judge Paez;Partial Concurrence and Partial Dissent by Judge Noonan

1788 ESTATE OF TUCKER v. INTERSCOPE RECORDS

COUNSEL

Richard C. Angino, Harrisburg, Pennsylvania, for the appel-lants.

Steven A. Marenberg, Perry M. Goldberg, & Jason Linder,Los Angeles, California, for appellees David Kenner, Geof-frey Thomas, Interscope Records, Inc., Interscope Records,Charles B. Ortner, and Paul, Hastings, Janofsky & WalkerLLP. Ronald L. Leibow, Los Angeles, California, for appelleeDeath Row Records, Inc.

1791ESTATE OF TUCKER v. INTERSCOPE RECORDS

OPINION

PAEZ, Circuit Judge:

In these consolidated malicious prosecution cases,1 WilliamTucker and the Estate of Cynthia Dolores Tucker (“the Tuck-ers”),2 appeal the district court’s grant of summary judgmentto all defendants in both cases. In Tucker v. Interscope, weaffirm the district court’s ruling as to all defendants. In Tuckerv. Kenner, we affirm the district court’s summary judgment asto defendant Thomas; however, as to defendant Kenner weaffirm the district court’s ruling in part and reverse in part,and remand for trial. We also affirm the district court’s grantof summary judgment as to Mr. Tucker’s loss of consortiumclaim in both cases.

I.

Overview

In the early 1990s, Cynthia DeLores Tucker, whose historyas an activist dates back to the civil rights movement of the1950s and 1960s, became concerned with the increasing pop-ularity of the style of hip-hop music known as “gangsta rap,”particularly its appeal to African-American youth. Sheenlisted the support of notable entertainers including DionneWarwick and Melba Moore to engage in lobbying and mediaoutreach, with the goal of limiting the sale of gangsta rap toyoung people. Her efforts brought her head-to-head with twoof the genre’s most successful production and distribution

1After oral argument, we sua sponte consolidated the two cases onappeal.

2Mrs. Tucker is now deceased. In an order dated January 27, 2006, thedistrict court granted Mr. Tucker’s motion to substitute himself, as Per-sonal Representative of the Estate of plaintiff Cynthia Delores Tucker, asparty plaintiff. On January 6, 2006, this court also substituted Mr. Tucker,in his capacity as Personal Representative of the estate, as an appellantpursuant to Fed. R. App. P. 43(a).


labels: Death Row Records, Inc. and Interscope Records, Inc.After Tucker and other members of her coalition approachedSuge Knight, then-CEO of Death Row, about entering into adistribution contract with the media behemoth Time Warner,Inc., Death Row and its distributor Interscope filed separatefederal court actions (the “underlying litigation”) againstTucker, alleging intentional interference with their exclusivecontractual relationship and other related claims.

After Death Row and Interscope successfully moved fordismissal without prejudice, the Tuckers filed separate law-suits against the two entities and their lawyers in federal dis-trict court, invoking diversity jurisdiction and charging themwith malicious prosecution. Her husband William Tuckersought damages for loss of consortium as a derivative claim.Applying California law, the district court granted summaryjudgment in both cases based on its conclusion that the Tuck-ers’ evidence did not create a genuine issue of fact as towhether any of the defendants had acted with malice, a neces-sary element of a malicious prosecution claim. The districtcourt also dismissed Mr. Tucker’s loss of consortium claim onthe grounds that Mr. Tucker failed to carry his burden of pro-duction and that without a viable claim for malicious prosecu-tion, his derivative claim failed as a matter of law.

Reviewing de novo the grants of summary judgment inboth cases, we conclude that, on the evidentiary record beforethe district court, it correctly concluded—except with regardto the claim for abuse of process included in the complaintfiled by Death Row’s attorney David Kenner—that the Tuck-ers did not present sufficient evidence to defeat the motionsfor summary judgment on the issue of malice. We thereforeaffirm the summary judgment in Tucker v. Interscope, andaffirm in part and reverse in part the district court’s grant ofsummary judgment in Tucker v. Kenner. We remand for trialthe Tuckers’ malicious prosecution claim against Kenner tothe extent that it is predicated on the abuse of process claimthat he included in Death Row v. Tucker. As we explain


below, as to that one claim the Tuckers have raised a genuinetriable issue of fact.

II.

Factual and Procedural Background

To fully understand these consolidated appeals, it is neces-sary to set forth the history of the two cases in some detail.Because the district court did not provide an extensive recita-tion of undisputed facts, we rely primarily on the parties’briefs and the record for the following factual overview, not-ing factual disputes where they exist and construing anyambiguities in favor of the Tuckers, as the non-moving par-ties.

A. The Underlying Dispute

Mrs. Tucker was a prominent civil rights advocate whoserved as the first African-American Secretary of State ofPennsylvania, the first African-American chair of the NationalFederation of Democratic Women, and the Chair of the Dem-ocratic National Committee Black Caucus. She also co-founded and chaired the National Political Congress of BlackWomen, Inc. (“NPC”), a non-profit organization dedicated topromoting African-American women’s education and politi-cal, economic, and cultural development.

During the early 1990s, Mrs. Tucker became troubled bythe growing popularity of “gangsta rap.”3 Of particular con-cern to Mrs. Tucker was the genre’s influence on African-American youth, who she feared would adopt the music’s vio-lent and sometimes misogynist perspectives. At the NPC’s

3The Oxford English Dictionary (online ed. 2007) defines gangsta rapas “a style of rap music, originating in south-central Los Angeles, featur-ing aggressive, often misogynistic lyrics, typically centering on the vio-lence of gang culture.”


biennial meeting in 1993, Mrs. Tucker enlisted the help ofwell-known artists Dionne Warwick, Melba Moore, and TerriRossi, along with lobbyist Voncier Alexander, to form anEntertainment Commission for the NPC that would supportAfrican-American entertainers, and particularly women. TheEntertainment Commission adopted a three-part mission: toeliminate barriers facing African-American artists and execu-tives; to mobilize African-American entertainers to addressimportant issues affecting African-American communities;and to “reshap[e] and maintain[ ] positive images to preservethe dignity and heritage of our youth.” From 1993 to 1995,the Entertainment Commission worked with prominent indi-viduals in entertainment and media, along with religious lead-ers and lobbyists, to put pressure on music producers anddistributors to halt the sale of gangsta rap to minors. AmongMrs. Tucker’s more high-profile efforts in pursuit of this goalwere an appearance at a 1995 Time Warner shareholder’smeeting, where she offered Time Warner executives $100 toread aloud gangsta rap lyrics from albums distributed underits name, and a protest against the sale of gangsta rap albumsoutside a Tower Records store, for which she was arrested.

Death Row is an independent record label founded in 1991by Suge Knight and the well-known rap artist Dr. Dre. DeathRow signed extremely popular gangsta rap stars including Dr.Dre, Tupac Shakur (“Tupac”), Snoop Doggy Dogg (“Snoop”),and Danny Boy, generating enormous profit, and notoriety,for the label throughout the mid-1990s. Interscope is a generalpartnership that records and distributes popular music. LikeDeath Row, it gained success and prominence during the1990s through the distribution and sale of gangsta rap. From1992 to 1998, Death Row maintained an exclusive contractualrelationship with Interscope, whereby Interscope was the soledistributor of Death Row’s music.

In 1995, Mrs. Tucker and the Entertainment Commissionbegan to direct their anti-gangsta rap campaign at Death Row.Knight, Death Row’s outside counsel David Kenner, and


Omar Bradley, who was then the mayor of Compton, Califor-nia, were invited to the NPC’s biennial convention in July1995, where they attended a meeting with Mrs. Tucker andother members of the Entertainment Commission. Some facts—including who initiated the meeting—are in dispute, but itis uncontested that this meeting occurred. According to Mrs.Tucker’s deposition testimony, during the meeting she spokewith Knight about the influence of gangsta rap on African-American youth and asked him to change the violent andmisogynist nature of the lyrics on the albums he produced.Mrs. Tucker testified that Knight agreed to make changes andto come back to the Entertainment Commission with a sam-ple.

At some point shortly before or after the NPC convention,Warwick held an informal meeting with Knight, Snoop, andDanny Boy at her home in Los Angeles. According to War-wick, the group discussed removing several references towomen as “bitches” and “ho’s” on Dogg Food, an album byTha Dogg Pound that Death Row would soon be releasing.Warwick testified at her deposition that she relayed this infor-mation to Mrs. Tucker, Alexander, and Michael Fuchs, then-CEO of Warner Music Group, an affiliate of Time Warner.

The summary judgment record contains a letter, datedAugust 7, 1995, printed on NPC letterhead. The letter appearsto be from Knight, though it does not bear his signature. It isaddressed to Mrs. Tucker in her capacity as chair of the NPC.The letter commemorates the purported details of Knight’smeeting with Mrs. Tucker at the NPC convention and readsin part:

I [Knight] hereby designate and authorize the [NPC]to negotiate an acceptable contract relationship withTime Warner Inc. regarding the production and dis-tribution of [Death Row] music products. I herebyunderstand that the above arrangement is based onthe fact that my company will cease and desist from


the production and distribution of misogynist,obscene and pornographic music. . . . This authoriza-tion is submitted to demonstrate my good faith incooperating with the [NPC] in every way possible toreverse the negative trends in African-Americanmusic.

There is conflicting testimony as to the circumstances of theletter’s drafting, but according to Mrs. Tucker’s own testi-mony it was drafted in the NPC office at her request. Mrs.Tucker also testified that she “gave the final okay to it.”

On August 8, 1995, another meeting took place at War-wick’s house. In attendance were Warwick, Mr. Tucker,Fuchs, and Alexander. Knight was invited but did not attend.Kenner testified at his deposition that he spent that day withKnight and that Knight received several phone calls through-out the day from someone at the meeting. According to Ken-ner, Knight was offered $80 million and two recording studiosif he would agree to break Death Row’s contract with Inters-cope and enter into a new contract with the Warner MusicGroup. Warwick and Mr. Tucker each testified, whendeposed, that no one at the meeting made such an offer toKnight; Warwick also testified that Knight called her that day“at least four times” to discuss problems he had with theAugust 7 letter.

On August 9, 1995, Kenner sent Warwick a letter onKnight’s behalf, indicating that “Mr. Knight has never con-veyed [the] authorization [for the NPC to negotiate a contractwith Death Row and Time Warner] and to the extent thatthere is any misapprehension . . . Mr. Knight hereby specifi-cally repudiates any such agreement. . . . Mr. Fuchs [sic]offer, as conveyed to Mr. Knight, of an $80,000,000 advanceand to provide him with two studios if he would agree to signdirectly with Time/Warner is specifically rejected.”


B. The Underlying Litigation

On August 15, 1995, Interscope filed a complaint(“Interscope v. Tucker”) in the United States District Courtfor the Central District of California, charging Mrs. Tuckerwith inducement to breach contract, interference with contrac-tual relations and prospective business advantage, attemptingto induce breach of fiduciary duty, and unfair business prac-tices and unfair competition. Interscope sought damages andan injunction enjoining Mrs. Tucker from attempting toinduce Death Row to breach its contract, interfering with theDeath Row contract, tortiously interfering with Interscope’sprospective business advantage, and attempting to induceTime Warner and/or Atlantic Records to breach their fidu-ciary duties to Interscope.4 The complaint listed Charles Ort-ner, Geoffrey Thomas, and Belinda Orem from the law firmof Paul, Hastings, Janofsky & Walker, LLP (“Paul Hastings”)as attorneys for Interscope.

On August 17, 1995, Death Row filed a complaint (“DeathRow v. Tucker”) in the United States District Court for theCentral District of California, naming as defendants Mrs.Tucker, the NPC, Time Warner, Inc., Warner Music Group,Inc., Fuchs, and Gerald Levin, who was then-chair of TimeWarner’s board of directors. The complaint charged all defen-dants with racketeering and/or aiding and abetting racketeer-ing under 18 U.S.C. § 1962(b) and (c); conspiring to violate§ 1962(b) and (c); conspiring to interfere with advantageousbusiness relationships; extortion; unfair business practices;and abuse of process. The complaint also sought to enjoin alldefendants from engaging in extortion, interfering with DeathRow’s First Amendment rights, and “any other unlawful actalleged in this complaint.” Kenner was listed as counsel forDeath Row.

4Atlantic was named as a nominal defendant and later dismissed onInterscope’s motion.


Interscope v. Tucker and Death Row v. Tucker wereassigned to the same district court judge. The district courtgranted Mrs. Tucker’s motion for judgment on the pleadingsin Interscope v. Tucker as to the claim for inducement tobreach a contract but denied the motion as to the remainingclaims. Pre-trial activity continued until June 1998, whenInterscope and Death Row each filed motions for voluntarydismissal on the grounds that “Tucker is essentially judgmentproof” and Interscope and Death Row no longer had a con-tractual relationship “for business reasons unrelated to this lit-igation.” The district court granted the motions and dismissedboth Interscope v. Tucker and Death Row v. Tucker withoutprejudice, over Mrs. Tucker’s objection that the suits shouldbe dismissed with prejudice.

C. The Malicious Prosecution Litigation

Within a month of the dismissal, the Tuckers filed theircomplaint in Tucker v. Interscope in the United States DistrictCourt for the Eastern District of Pennsylvania, invokingdiversity jurisdiction. The complaint charged Interscope,Death Row, Ortner, and Paul Hastings (“Interscope Defen-dants”) with malicious use of civil proceedings, abuse of pro-cess, intentional infliction of emotional harm, common lawcivil conspiracy, and racketeering conspiracy in violation of18 U.S.C. § 1962(d). Upon Defendants’ motion, the case wastransferred to the Central District of California. The Tuckerslater successfully moved to withdraw all but the maliciousprosecution and loss of consortium claims.

The Tuckers filed their complaint in Tucker v. Kenner inthe United States District Court for the Central District of Cal-ifornia, naming Kenner and Thomas as defendants (“KennerDefendants”), along with five other defendants who were sub-sequently dismissed, and again invoking diversity jurisdiction.5

5The district court and the parties relied on California law in both cases,as do we. Neither party has argued that Pennsylvania law should apply in


The Kenner complaint similarly raised claims for maliciousprosecution and loss of consortium, in addition to abuse ofprocess, slander, and negligent and intentional infliction ofemotional distress. The district court later dismissed all butthe malicious prosecution and loss of consortium claims.

After discovery, the Interscope and Kenner Defendantsfiled separate motions for summary judgment based on (1) anaffirmative defense of unclean hands; (2) lack of favorabletermination; (3) existence of probable cause; (4) lack of mal-ice; (5) insufficient evidence of damages; and (6) no loss ofconsortium. The district court granted the motion on the basisof insufficient evidence of damages and no loss of consortiumbut declined to address the other issues on the ground thatthey were moot. We reversed the summary judgment rulingsin both cases in an unpublished memorandum disposition. SeeTucker v. Kenner, 85 F. App’x 610 (9th Cir. Jan. 14, 2004)(unpublished).6 We remanded with instructions to the districtcourt to consider the remaining grounds for summary judg-ment: unclean hands; lack of favorable termination; existenceof probable cause; and lack of malice. Id. at 614.

On remand, the Interscope and Kenner Defendants againfiled for summary judgment asserting: (1) an unclean handsaffirmative defense; (2) lack of favorable termination; (3) noloss of consortium; and (4) existence of probable cause for theunderlying claims; and (5) lack of malice.

In Tucker v. Interscope, the district court concluded thatgenuine issues of fact existed as to favorable termination andDefendants’ affirmative defense of unclean hands. It con-

the Interscope case. See C.N.R. Atkin v. Smith, 137 F.3d 1169, 1170-71(9th Cir. 1998) (“The district court applied California law to this disputeand neither party objected. Therefore, we consider the parties to havewaived any objection to the application of California law.”).

6We consolidated Tucker v. Kenner with Tucker v. Interscope for pur-poses of the appeal from the initial summary judgments.


cluded, however, that all Interscope Defendants had probablecause to pursue claims for intentional interference with con-tractual relationship, intentional interference with prospectivebusiness advantage, and unfair business practices and unfaircompetition. However, regarding Interscope, Ortner, and PaulHastings, the district court found that genuine issues of factexisted as to whether they had probable cause to pursue theclaims for inducement to breach contract and inducement tobreach fiduciary duty. Regarding Death Row, the districtcourt found that genuine issues of fact existed as to whetherit had probable cause to pursue the claims for RICO viola-tions, state law extortion, and abuse of process.

In addition, the district court concluded that the Tuckers“failed to produce any evidence to show that the InterscopeDefendants acted with malice” in filing the underlying law-suits and that Mr. Tucker’s alleged injuries were insufficientto support a claim for loss of consortium. It therefore dis-missed the malicious prosecution claim based on insufficientevidence of malice and dismissed the loss of consortiumclaim because it was alleged as a derivative claim and becauseMr. Tucker’s evidence was insufficient to establish a loss ofconsortium. The Tuckers timely appealed the district court’sjudgment, Case No. 05-56045.7

In Tucker v. Kenner, the district court concluded that Ken-ner and Thomas had probable cause to pursue the claims forintentional interference with contractual relationship, inten-tional interference with prospective business advantage, andunfair business practices and unfair competition. It concludedthat material issues of fact remained whether Thomas had

7After the Tuckers timely appealed the district court’s judgment, CaseNo. 05-56045, Death Row filed for bankruptcy. We granted a stay as toDeath Row but allowed the Tuckers to proceed after the bankruptcy courtgranted their motion for relief from the automatic stay provided in 11U.S.C. § 362(a). Although Death Row has been represented by counselthroughout the duration of this appeal, it has never filed a brief and did notmake an appearance at oral argument.


probable cause to pursue the claims for inducement to breachcontract and inducement to breach fiduciary duty and whetherKenner had probable cause to pursue the claim for abuse ofprocess. The district court further concluded that materialissues of fact remained as to favorable termination and Defen-dants’ unclean hands affirmative defense.

As in Tucker v. Interscope, however, the district court con-cluded that the Tuckers “failed to produce any evidence toshow that [Thomas] acted with malice” and therefore dis-missed the malicious prosecution and loss of consortiumclaims against him. The court also dismissed the loss of con-sortium claim against Kenner for lack of evidence but did notaddress whether the Tuckers’ evidence could show that Ken-ner acted with malice. In response to this ambiguity, Kennerfiled a second motion for summary judgment on the basis oflack of malice and for clarification of the court’s prior ruling.The district court’s subsequent ruling determined that themalicious prosecution claim against Kenner should be dis-missed because “the evidence Plaintiffs offer in addition tothis finding is insufficient to show that Kenner acted withmalice.” Therefore, “[a] reasonable jury could not return averdict in [the Tuckers’] favor” and summary judgment waswarranted.8 The Tuckers timely appealed this judgment aswell, Case No. 06-55376.

8Judge Noonan’s partial concurrence and partial dissent states that “thedistrict court has ruled as a matter of law that Kenner lacked probablecause to bring the claim for abuse of process.” Dissent at 1802. This state-ment is not entirely accurate. In the memorandum accompanying the dis-trict court’s order the judge said two different things—stating indiscussion that he “notes” that “Kenner lacked probable cause” to bringthe abuse of process claim, but then on the following page concluding that“genuine issues of fact exist[ ] as to [probable cause], which preclude[ ]finding as a matter of law in his favor.” Tucker v. Kenner, No. CV99-06129 (C.D. Cal. filed Feb. 24, 2006). This ambiguity is of no conse-quence to our ultimate disposition of the Tuckers’ claim against Kenner.See discussion infra Part IV(C)(1).


III.

Jurisdiction and Standard of Review

The district court had original jurisdiction over both casesunder 28 U.S.C. § 1332. Our jurisdiction over the Tuckers’timely appeals arises under § 1291. We review de novo a dis-trict court’s grant of summary judgment. Delta Sav. Bank v.United States, 265 F.3d 1017, 1021 (9th Cir. 2001).

Federal rather than California procedural rules govern thisdiversity action. See Gasperini v. Ctr. for Humanities, Inc.,518 U.S. 415, 427 (1996). Summary judgment is not war-ranted if a material issue of fact exists for trial. Warren v. Cityof Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). A defendantwho moves for summary judgment bears the initial burden ofproving the absence of any triable issue of fact but need notproduce evidence negating elements of a claim for which theplaintiff bears the burden of proof at trial. Celotex Corp. v.Catrett, 477 U.S. 317, 323-25 (1986). A non-moving plaintiffcan defeat a motion for summary judgment by producing evi-dence “such that a reasonable jury could return a verdict” inhis favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986). Pursuant to Federal Rule of Civil Procedure 56(e), anon-moving plaintiff cannot “rest upon the mere allegationsor denials of the adverse party’s pleading” but must insteadproduce evidence that “set[s] forth specific facts showing thatthere is a genuine issue for trial.” Id. (internal quotation marksomitted).

IV.

The Malicious Prosecution Claims

[1] Under California law, a malicious prosecution claim isdisfavored and requires proof that the underlying litigation:

(1) was commenced by or at the direction of thedefendant and was pursued to a legal termination in


his, plaintiff’s, favor; (2) was brought without proba-ble cause; and (3) was initiated with malice.

Zamos v. Stroud, 87 P.3d 802, 807 (Cal. 2004) (internal quo-tation marks, citations, and alterations omitted). In addition,the plaintiff must demonstrate “resulting damage by way ofattorneys’ fees incurred in defense, mental distress, and/orinjury to reputation or social standing.” Harbor Ins. Co. v.Cent. Nat’l Ins. Co., 211 Cal. Rptr. 902, 907 (Ct. App. 1985).Because, with one exception, we conclude that the Tuckers’evidence did not establish a genuine issue of fact as to malice,we do not address the element of favorable termination forMrs. Tucker.9 We discuss the element of probable cause to theextent it relates to malice.

A. The Elements of Malice and Probable Cause

“The ‘malice’ element of the malicious prosecution tortrelates to the subjective intent or purpose with which thedefendant acted in initiating the prior action. . . .” SheldonAppel Co. v. Albert & Oliker, 765 P.2d 498, 503 (Cal. 1989).In Sierra Club Found. v. Graham, 85 Cal. Rptr. 2d 726 (Ct.App. 1999), the California Court of Appeal explained:

[M]alice is present when proceedings are institutedprimarily for an improper purpose. Suits with thehallmark of an improper purpose are those in which:(1) the person initiating them does not believe thathis claim may be held valid; (2) the proceedings arebegun primarily because of hostility or ill will; (3)the proceedings are initiated solely for the purpose ofdepriving the person against whom they are initiatedof a beneficial use of his property; (4) the proceed-

9Nor need we revisit whether Mrs. Tucker suffered damages as a resultof the underlying litigation because we determined that there were suchdamages in Tucker v. Kenner, 85 F. App’x 610 (9th Cir. Jan. 14, 2004)(unpublished).


ings are initiated for the purpose of forcing a settle-ment which has no relation to the merits of theclaim.

Id. at 739-40 (internal quotation marks, citation, and alterationomitted). Malice is usually a question of fact for the jury todetermine. See Sheldon Appel Co., 765 P.2d at 503. Summaryjudgment on the basis of lack of malice is nonetheless appro-priate when there is no evidence from which a reasonable factfinder could conclude that the defendant pursued the underly-ing action with malice. See Ghebreselassie v. Coleman Sec.Serv., 829 F.2d 892, 899 (9th Cir. 1987) (affirming summaryjudgment dismissal of malicious prosecution claim under Cal-ifornia law when plaintiff could “point to no evidence fromwhich a fact-finder could reasonably infer that the investiga-tors or the employer lacked probable cause or that they actedwith malice”).

Probable cause, in contrast, is a question of law that turnson whether the underlying claim was “legally tenable, asdetermined on an objective basis.” Padres L.P. v. Henderson,8 Cal. Rptr. 3d 584, 600 (Ct. App. 2004). Whereas the ele-ment of malice focuses on the defendant’s state of mind at thetime he initiated the underlying litigation, probable cause:

“is measured by the state of the defendant’s knowl-edge, not by his intent. . . . [T]he standard applied todefendant’s consciousness is external to it. The ques-tion is not whether he thought the facts to constituteprobable cause, but whether the court thinks theydid.”

Sheldon Appel Co., 765 P.2d at 508 (quoting Dir. Gen. v.Kastenbaum, 263 U.S. 25, 27-28 (1923)) (emphasis in Shel-don Appel Co.).

[2] The elements of malice and probable cause thereforerequire different showings. The probable cause inquiry is


objective, asking whether a reasonable person would havethought that the claim was legally tenable “without regard to[her] mental state.” Roberts v. Sentry Life Ins., 90 Cal. Rptr.2d 408, 412 (Ct. App. 1999). The only potential factual issuefor purposes of probable cause is “the state of the defendant’sknowledge” at the time she initiated the underlying lawsuit.Sheldon Appel Co., 765 P.2d at 507.10 “[W]hen the state of thedefendant’s factual knowledge is resolved or undisputed, it isthe court which decides whether such facts constitute proba-ble cause or not.” Id. at 508.11

[3] Malice, on the other hand, is shown through evidenceof “the subjective mental state of the defendant in institutingthe prior action.” Downey Venture v. LMI Ins. Co., 78 Cal.Rptr. 2d 142, 152 (Ct. App. 1998) (internal quotation marksomitted). Because the objective reasonableness of the under-lying lawsuit is separate from a defendant’s subjective mentalstate in bringing it,

by itself, the conclusion that probable cause is absentlogically tells the trier of fact nothing about thedefendant’s subjective state of mind. . . . [T]he pres-ence of malice must be established by other, addi-tional evidence. . . . [T]hat evidence must includeproof of either actual hostility or ill will on the part

10The California Supreme Court explained in Sheldon Appel Co. that“when . . . there is evidence that the defendant may have known that thefactual allegations on which his action depended were untrue, the jurymust determine what facts the defendant knew” before the court can deter-mine the existence of probable cause as a matter of law. Id. at 508.

11See also id. at 506 (“the probable cause element calls on the trial courtto make an objective determination of the ‘reasonableness’ of the defen-dant’s conduct, i.e., to determine whether, on the basis of the facts knownto the defendant, the institution of the prior action was legally tenable. Theresolution of that question of law calls for the application of an objectivestandard to the facts on which the defendant acted.”) (rejecting ToolResearch & Eng’g Corp. v. Henigson, 120 Cal. Rptr. 291 (Ct. App.1975)).


of the defendant . . . to deliberately misuse the legalsystem for personal gain or satisfaction at theexpense of the wrongfully sued defendant.

Id. at 153-54 (citations and footnote omitted) (emphasisadded); see also Grindle v. Lorbeer, 242 Cal. Rptr. 562, 565(Ct. App. 1987) (“[I]n a given case, unreasonable behaviorwhich could lead to a determination that there was a lack ofprobable cause to file, might not provide a sufficient basis toinfer malice.” (emphasis added) (internal quotation marksomitted)).

[4] As recently as 2002 the California Court of Appeal hasemphasized that where malice must be shown, only “other,additional evidence” apart from a lack of probable cause, issufficient. Swat-Fame, Inc. v. Goldstein, 101 Cal. App. 4th613, 634 (2002) (citing Downey Venture, 66 Cal.App.4th at498), disapproved on other grounds by Zamos v. Stroud. InSwat-Fame, that additional evidence was the deposition testi-mony of defendant Goldstein. In her testimony Goldsteinadmitted as true facts that she had alleged were false in herrecently-filed complaint against Swat-Fame. When her com-plaint was dismissed, Swat-Fame brought suit for maliciousprosecution. The court of appeal determined that the discordbetween Goldstein’s two accounts, as well as her settlementtactics in the earlier litigation raised a material issue as towhether she “knowingly [brought] an action without probablecause.” Id. Swat-Fame confirms our understanding of Califor-nia law that the two elements—probable cause and malice—are not only distinct but that “a lack of probable cause, stand-ing alone, does not support an inference of malice.” Id.12

12To the contrary, the dissent’s use of Swat-Fame to insist that a know-ing lack of probable cause can be inferred from a mere lack of probablecause is unfounded. Such an argument—as where the dissent argues thatthe absence of an actual breach of contract (objective evidence of probablecause) “could allow a jury to infer that Kenner knowingly brought [theclaim] without probable cause”—both contradicts the plain facts of that


For the reasons that follow, we conclude that—save for theabuse of process claim filed by David Kenner—the Tuckers’evidence did not create a triable issue of fact whether theInterscope or Kenner Defendants acted with malice in pursu-ing Interscope v. Tucker and Death Row v. Tucker. Althoughthe Tuckers have not attempted to differentiate their evidenceof malice as it relates to Interscope and Death Row as partiesin the underlying litigation and to Ortner, Kenner, Thomas,and Paul Hastings as attorneys for the parties, we note that aparty’s malfeasance in initiating a lawsuit is not imputable tocounsel. See Zeavin v. Lee, 186 Cal. Rptr. 545, 548 (Ct. App.1982). Nor are claims related to continuing such a lawsuitinterchangeable for parties and attorneys.13 We therefore sepa-rately consider the two groups of defendants.

case and effectuates an end-run around the very distinction central toSwat-Fame’s analysis. See Dissent at 1834, 1839; see also Dissent at 1835(lack of probable cause for racketeering claim evinces “hate-filled malig-nancy”); Dissent at 1833 (Kenner lacking probable cause for abuse of pro-cess claim would allow the jury to infer not only that Death Row lackedprobable cause but also that such a circumstance could lead a jury to inferthat both Kenner and Death Row held “knowing assertion[s]” of malice(emphasis added)). We respectfully disagree with the dissent’s character-ization of Swat-Fame.

13The dissent overlooks this crucial distinction and therefore misreadsZamos v. Stroud. The dissent offers Zamos for the proposition that “malicein continuing a lawsuit is as actionable as malice in originating it.” Dissentat 1837. But the dissent overlooks that the holding in Zamos did not con-cern the post-filing conduct of the parties. Rather, Zamos held that anattorney who continues to prosecute a suit that he knows is without basisis liable for malicious prosecution where “any reasonable attorney wouldagree [that the case is] totally and completely without merit” as a matterof law. Zamos, 87 P.3d at 810. This holding is narrow. Weighing the effectof newly acquired evidence on the continued prosecution of a lawsuit isa matter peculiarly within the knowledge and competence of an attorney.It is difficult, therefore, to see how Zamos says anything about how thecourt should view Death Row’s role with respect to the ad in The Sourceor Tupac’s lyrics, or how Zamos stands for the general proposition that“malice in continuing a lawsuit is as actionable as malice in originatingit.”


B. Defendants Death Row and Interscope

[5] The Tuckers first assert that they could prove malice toa jury because they have contested factual allegations made inthe complaints in Death Row v. Tucker and Interscope v.Tucker. A “bare assertion that [defendants] ‘fabricated’ evi-dence” does not show malice. Sangster v. Paetkau, 80 Cal.Rptr. 2d 66, 75 (Ct. App. 1998); see also Fed. R. Civ. P. 56(e).14

The Tuckers’ evidence comprises only Mrs. Tucker’s deposi-tion testimony that the underlying cases were “lies, and that’sthe reason this [malicious prosecution] suit was filed,” andsimilar statements by Mr. Tucker. These unsubstantiatedassertions do not create a triable issue of fact regarding theexistence of malice. Moreover, “the fact there may be somedisputed facts relevant to the merits of the underlying actiondoes not by itself defeat a motion for summary judgment ina malicious prosecution action.” Sangster, 80 Cal. Rptr. 2d at76.

[6] The Tuckers also argue that the district court erred in

14The Tuckers mistakenly rely on Axline v. Saint John’s Hospital andHealth Center, 74 Cal. Rptr. 2d 385 (Ct. App. 1998), disapproved on othergrounds by Hassan v. Mercy Am. River Hosp., 74 P.3d 726 (Cal. 2003),for the proposition that a malicious-prosecution plaintiff can defeat amotion for summary judgment by alleging that the defendant knew thatthe information upon which he or she based the underlying claim wasfalse. Axline, however, dealt with a dismissal following the trial court’ssustaining of a demurrer, the California equivalent of a motion to dismisson the pleadings under Federal Rule of Civil Procedure 12(b)(6). SeeAxline, 74 Cal. Rptr. 2d at 387 (“When a demurrer is sustained, we deter-mine whether the complaint states facts sufficient to constitute a cause ofaction.”). For purposes of a demurrer, California courts treat all allegationsin the complaint as true. C & H Foods Co. v. Hartford Ins. Co., 211 Cal.Rptr. 765, 768 (Ct. App. 1984). To defeat a summary judgment motion,by contrast, the non-moving party “may not rest upon the mere allegationsor denials” in the pleadings. Fed. R. Civ. P. 56(e). The non-moving partymust establish the existence of a genuine factual dispute on the basis ofadmissible evidence; bare allegations without evidentiary support areinsufficient to survive summary judgment.


granting summary judgment on the basis of lack of malicewhen there were genuine issues of fact regarding the exis-tence of probable cause for some claims brought in the under-lying litigation. But the fact that the district court foundtriable issues of fact as to probable cause for some claims,without more, is insufficient to survive summary judgmentbased on lack of malice. See Paulus v. Bob Lynch Ford Inc.,43 Cal. Rptr. 3d 148, 161 (Ct. App. 2006) (“Malice cannot beestablished simply by a showing of the absence of probablecause. . . .”); Downey, 78 Cal. Rptr. 2d at 153-54 (holding thatunderlying claim’s “lack[ of] legal tenability . . . withoutmore, would not . . . permit the inference [of malice]” andrequiring that “the presence of malice . . . be established byother, additional evidence”). As explained above, malicerequires proof of a defendant’s subjective state of mind; a“conclusion that probable cause [as an objective inquiry] isabsent logically tells the trier of fact nothing about the defen-dant’s subjective state of mind.” Downey, 78 Cal. Rptr. 2d at153. Even if we were to agree with the dissent that probablecause was lacking for many of the claims alleged in DeathRow v. Tucker and Interscope v. Tucker, the evidence pro-vided by the Tuckers is simply not probative of the subjectiveintent in filing the underlying lawsuits.

In Padres, the Court of Appeal concluded that the plaintiffestablished a prima facie case of malice15 because, in additionto the lack of probable cause, the defendant filed repeatedactions against the plaintiff “in order to interfere with and/orderail” the plaintiff’s business venture. 8 Cal. Rptr. 3d at 605.This evidence of subjective intent was in addition to the lackof probable cause and was sufficient to defeat summary judg-

15In Padres the defendant moved to strike the plaintiff’s malicious pros-ecution claim under California Code of Civil Procedure section 425.16,commonly known as the Strategic Lawsuit Against Public Participation(“SLAPP”) statute. Defeating an anti-SLAPP motion requires the plaintiffto “make a prima facie showing of facts that would be sufficient to sustaina favorable judgment under the applicable evidentiary standard.” Padres,8 Cal. Rptr. 3d at 594.


ment. See id. In HMS Capital, Inc. v. Lawyers Title Co., 12Cal. Rptr. 3d 786 (Ct. App. 2004), the court similarly foundthat the plaintiff had made a prima facie showing of malicesufficient to defeat the defendant’s anti-SLAPP motion whenit produced evidence that the defendant knew the underlyingsuit lacked any factual basis, took no depositions, and offeredto accept $25,000 in exchange for dismissing the case. Id. at796-97. “These facts could support a conclusion that [defen-dant] was simply trying to squeeze a settlement from [plain-tiff] on a baseless case, and hence evidence of malice.” Id. at797.

The Tuckers argue that they, too, have produced evidenceof malice with respect to Death Row and Interscope. Specifi-cally, they rely on a two-page advertisement taken out in theOctober 1995 issue of The Source, a popular hip-hop maga-zine, which they characterize as “calling for Mrs. Tucker’s elim-ination,”16 and derogatory references to Mrs. Tucker in thesongs “How Do U Want It” and “Wonda Why They Call UBitch” on Tupac’s 1996 album All Eyez on Me.17 The Tuckers

16One page of the advertisement features in large type the words“DEATH ROW RECORDS” and promotes Snoop Dogg’s latest album“Dogg Food from Tha Dogg Pound.” The artists featured on the releaseare listed, and include Dr. Dre, Daz, and Kurupt. The facing page, in thesame large type, features the words “FREEDOM FIGHTERS” and lists,in a similar fashion, the names of twelve legendary civil rights advocates,including Martin Luther King, Jr., Nelson Mandela, and Sojourner Truth.Mrs. Tucker’s name appears at the bottom of the list slashed through witha red line. The page also includes a quotation from King’s “I Have aDream Speech” and a quotation by Knight, dated August 28, 1995:“ ‘Whether it’s freedom for our people or freedom for our people to saywhat’s on their minds the fight lives on . . .’ ” (ellipsis in original). Knightis identified as “CEO Death Row Records.”

17“How Do U Want It” addresses Mrs. Tucker as a “muthafucka” andberates her because “instead of trying to help a nigga you destroy a brotha,worst than the others.” In “U Wonda Why They Call U Bitch,” Tupacraps, “Dear Ms. Delores [sic] Tucker, you keep stressin’ me, fuckin witha motherfuckin’ mind. I figured you wanted to know, you know, why wecall them ho’s bitches. Maybe this might help you understand. It ain’t per-sonal. It’s strictly business, baby, strictly business.” These lyrics were thesubject of separate litigation. See Tucker v. Fischbein, 237 F.3d 275 (3dCir. 2001); Tucker v. MTS, Inc., 229 F.3d 1139 (3d Cir. 2000) (Table)(unpublished).


assert that a jury could infer from the ad and lyrics that DeathRow and Interscope harbored hostility toward Mrs. Tuckerand that they brought the underlying lawsuits for the improperpurpose of chilling her anti-rap campaign.

[7] We disagree because under California law malice isshown through evidence of “the subjective mental state of thedefendant in instituting the prior action.” Downey Venture, 78Cal. Rptr. 2d at 152 (internal quotation marks omitted)(emphasis added). This is not a case like Padres, whererepeated actions were filed, or HMS Capital were no deposi-tions were taken and questionable settlement tactics were pur-sued. Here, even assuming the Tuckers produced sufficientevidence from which a jury could connect the ad in TheSource or Tupac’s lyrics to either Interscope or Death Row,18

such conduct occurred months after the suits were initiatedand is simply not probative of either party’s subjective intentin filing the underlying litigation. Placing an ad to promoteSnoop Dogg’s latest album, or calling out an individual inlyrics—even if done so in a shocking and degrading way—does not present any of the “hallmark[s]” of a lawsuit broughtfor an improper purpose. See Sierra Club, supra, 72 Cal. App.4th at 1157. Nor does Zamos address this question.19 On this

18The Tuckers have failed to show a factual link between the ad in TheSource and Interscope. The ad itself is silent as to Interscope and, presum-ably, for Interscope to be liable the Tuckers would have to show that Inter-scope was directly involved in the ad, or that Interscope, as the exclusivedistributor of Death Row’s music, managed and controlled Death Row tothe extent that Death Row was a mere agent or instrumentality of Inter-scope, see Marr v. Postal Union Life Ins. Co., 105 P.2d 649, 654-55 (Cal.1940) (establishing factors by which a parent corporation may be liable forthe torts of a subsidiary). The Tuckers have failed to do either.

As to the derogatory references to Mrs. Tucker in All Eyez On Me, thefact that Death Row produced the album and that Interscope distributed itdo not tie either defendant to the derogatory lyrics. No reasonable finderof fact could infer from the lyrics that Death Row or Interscope harboredmalice towards Mrs. Tucker and filed the prior, underlying lawsuits forthat reason.

19Zamos is the only California authority cited by the dissent for theproposition that “malice [by parties] in continuing a lawsuit is [ ] action-


record, no California authority supports, nor could any rea-sonable finder of fact infer, that this post-filing conduct wasprobative of why the parties filed Interscope v. Tucker andDeath Row v. Tucker.

[8] The Tuckers next assert that a jury could infer improperpurpose from the fact that Death Row and Interscope prose-cuted the underlying lawsuits for three years without seekinga hearing on their claims for injunctive relief and then volun-tarily dismissed the suits. In light of the Tuckers’ own discov-ery delays, for which they were sanctioned, the mere fact thatthe litigation never progressed to a hearing or trial on the mer-its is insufficient to create a triable issue of fact regardingmalice. Nor do the voluntary dismissals in Death Row v.Tucker and Interscope v. Tucker suggest that Death Row andInterscope initiated those lawsuits believing their claims to bemeritless. Cf. Sierra Club, 85 Cal. Rptr. 2d at 740 (rejectingargument that post-dismissal settlement was “[ ]relevant to theissue of [defendant’s] state of mind for purposes of the mali-cious prosecution”). The Tuckers produced no evidence toundermine Defendants’ explanation that they dismissed DeathRow v. Tucker and Interscope v. Tucker upon the terminationof their contractual relationship, at which point most of theunderlying claims for injunctive relief became moot and theunderlying claims for damages, given that the Tuckers werejudgment-proof, became futile. Nor could a jury reasonablyinfer that the statements in the Defendants’ motions that theTuckers were judgment-proof were somehow “window-dressing meant to disguise the absence of any fact supportingthe outrageous claims asserted.” Dissent at 1832. To the con-trary, the California Court of Appeal has encouraged timelydismissals, noting that:

able.” Dissent at 1837. But, the post-filing behavior at issue in Zamosinvolved an attorney who continued to prosecute a case after discoveringfacts demonstrating that the lawsuit had no merit. That case does not con-template whether post-filing conduct by the parties evinces malice in initi-ating the suit.


the law favors the early resolution of disputes,including voluntary dismissal of suits when theplaintiff becomes convinced he cannot prevail orotherwise chooses to forego the action. This policywould be ill-served by a rule which would virtuallycompel the plaintiff to continue his litigation in orderto place himself in the best posture for defense of amalicious prosecution action.

Leonardini v. Shell Oil Co., 264 Cal. Rptr. 883, 897-98 (Ct.App. 1989) (citation omitted).

[9] Finally, the Tuckers assert they can demonstrate maliceon the ground that Interscope named only Mrs. Tucker (andAtlantic Ventures nominally) as a defendant. Given that thestrongest evidence supporting Interscope’s claims was theAugust 7 letter bearing Mrs. Tucker’s name, the decision toname only Mrs. Tucker rather than other members of the NPCand its Entertainment Commission reflects a prudent litigationdecision and is not evidence that the parties knowinglybrought an action without probable cause or that they har-bored especial ill will towards Mrs. Tucker.

[10] In sum, we agree with the district court’s legal conclu-sion that the Tuckers did not produce sufficient evidence fromwhich a jury could infer that either Death Row or Interscopepursued the underlying litigation out of malice.

C. Attorney-Defendants Ortner, Thomas, Kenner, andPaul Hastings

[11] To show that attorney-Defendants Ortner, Thomas,Kenner, and the law firm of Paul Hastings acted with malicein pursuing the underlying litigation on behalf of their clients,the Tuckers must do more than rely on the evidence relatingto Death Row and Interscope’s own purposes in initiatingDeath Row v. Tucker and Interscope v. Tucker. See Zeavin,186 Cal. Rptr. at 548 (rejecting the “argument of joint liability


of attorney and client for the conduct of each other whereboth are joined as defendants in a malicious prosecutionaction” and noting that “the client is not the agent of his attor-ney”); see also Morrison v. Rudolph, 126 Cal. Rptr. 2d 747,752 (Ct. App. 2004) (“ ‘Usually, the client imparts informa-tion upon which the attorney relies in determining whetherprobable cause exists for initiating a proceeding. The rule isthat the attorney may rely on those statements as a basis forexercising judgment and providing advice, unless the client’srepresentations are known to be false.’ ” (quoting Mallen &Smith, Legal Malpractice (5th ed. 2000) § 6.19, p. 620)(emphasis added)), disapproved of on other grounds byZamos, 87 P.3d at 802. To ultimately prevail against any ofthe attorney-Defendants, the Tuckers must show “other, addi-tional evidence” that demonstrates the attorney’s own maliceor knowing lack of probable cause. Swat-Fame, 101 Cal. App.4th 613 at 634 (citing Downey Venture, 66 Cal. App. 4th at498); see also Ross v. Kish, 51 Cal. Rptr. 3d 484, 497 (Ct.App. 2006) (holding that “because the evidence suggests [theattorney-defendant] knew the claims for breach of contractand legal malpractice lacked factual and legal support[,] . . .a trier of fact reasonably could infer [the defendant-attorney]filed the action with malice”).

1. Kenner and the Claim for Abuse of Process

With respect to the abuse of process claim in Death Rowv. Tucker, the Tuckers have raised a triable issue of fact underthe above standard. A reasonable fact-finder could infer fromKenner’s drafting of the complaint that Kenner knew theabuse of process claim lacked merit.20 In drafting the com-

20The fact that Kenner included multiple causes of action in the com-plaint, some of which were pled properly on the known facts at the timeof filing, does not affect our determination that Kenner’s abuse of processclaim raises a triable issue of fact regarding malice. Under California law,“it is not necessary that the whole proceeding be utterly groundless, for,if groundless charges are maliciously and without probable cause, coupled


plaint, Kenner alleged that Mrs. Tucker’s “wrongful use ofthe criminal and civil justice system” was an abuse of processunder California state law. The only fact in the complaint tosupport that allegation was that “[Suge] Knight was specifi-cally threatened that as a result of [Tucker’s] power and influ-ence that [he] would spend the rest of his life in jail.” Evenif Kenner sincerely relied on his client’s representations thatsuch a threat was made by Tucker, Kenner’s use of that alle-gation to state an abuse of process claim provides a triableissue as to whether Kenner did so with malice.

[12] This is because under well-established California law,the tort of abuse of process “requires misuse of a judicial pro-cess.” Stolz v. Wong Commc’ns Ltd. P’ship, 25 Cal. App. 4th1811, 1822 (Ct. App. 1994). It is a process that is “pursuantto authority of [a] court.” Meadows v. Bakersfield Sav. &Loan Ass’n., 59 Cal. Rptr. 34, 37 (Ct. App. 1967); see id.(“[T]he essence of the tort ‘abuse of process’ lies in the mis-use of the power of the court; it is an act done in the name ofthe court and under its authority for the purpose of perpetrat-ing an injustice.”); see also 5 Witkin, Summary of Cal. Law(10th ed. 2005) Torts, § 517, pp.767-68. To succeed in anaction for abuse of process, a litigant must establish that thedefendant (1) contemplated an ulterior motive in using thejudicial process, and (2) committed “a willful act in the useof th[at] process not proper in the regular conduct of the pro-ceedings.” Oren Royal Oaks Venture v. Greenberg, Bernhard,Weiss & Karma, Inc., 728 P.2d 1202, 1209 (Cal. 1986). Mis-use of an administrative proceeding—even one that is quasi-

with others which are well founded, they are not on that account less inju-rious, and, therefore, [even one charge can] constitute a valid cause ofaction.” Crowley v. Katleman, 881 P.2d 1083, 1088 (Cal. 1994) (internalquotation marks omitted); see also Bertero v. Nat’l Gen. Corp., 529 P.2d608 (Cal. 1974) (approving a jury instruction allowing the jury to find forthe plaintiff in a malicious prosecution action even if only one of the threetheories of liability pleaded in the underlying action lacked probablecause).


judicial—does not support a claim for abuse of process. Stolz,25 Cal. App. 4th at 1823-25 (noting that there is “no authori-ty” that extends the tort to administrative proceedings). Noris there any authority—Kenner’s citation to Standing Commit-tee on Discipline v. Ross not withstanding—that threats madeoutside of the judicial process can form the basis for an abuseof process claim. See Ross, 735 F.2d 1168, 1170 (9th Cir.1984) (threatening criminal charges to obtain an advantage inan ongoing civil action subjected lawyer to disciplinary pro-ceedings).

[13] Here, in drafting the abuse of process claim, Kennerrelied on vague language about “wrongful use of the criminaland civil justice system” despite clearly established law thatrequires misuse of a court process.21 Moreover, he supportedthe claim with the mere factual assertion that Tucker woulduse her “influence” to ensure that Knight went to jail. Thesecircumstances raise a genuine triable issue of fact as to Ken-ner’s “subjective mental state . . . in instituting the [claim].”Downey Venture, 78 Cal. Rptr. 2d at 152. A fact-finder couldreasonably infer from Kenner’s drafting of the complaint thathe did not believe the claim was valid when filed, or that theclaim was instituted for an improper purpose.22

21For this reason, although Kenner invites us to affirm the districtcourt’s grant of summary judgment on the basis that he had probable causeto include the abuse of process claim in Death Row v. Tucker, he hasutterly failed, on this record, to demonstrate that he is entitled to judgmentas a matter of law. We therefore have no basis on which to affirm on thisalternative ground.

22We also note that the only additional evidence that Kenner obtainedafter he filed the complaint, according to his own deposition, was that,“[Tucker] apparently did call the Justice Department, I think Janet Renodirectly, and I think she called Alcohol, Tobacco and Firearms, and I thinkshe called the FBI . . . there [may have been] an investigation that fol-lowed.” Even assuming arguendo that such complaints or investigationsoccurred, the tort of abuse of process lies in the misuse of the power ofthe court. Meadows, 59 Cal. Rptr. at 37. Under these circumstances, a rea-sonable fact-finder could infer, as recognized in Zamos, that Kenner’s con-tinued prosecution of the abuse of process claim, after learning that it hadno merit, was evidence of a malicious intent. See also Sycamore RidgeApt’s v. Naumann, 69 Cal. Rptr. 3d 561, 579-81 (Ct. App. 2007) (applyingZamos).


2. Ortner, Thomas, Paul Hastings and the RemainingClaims against Kenner

[14] With respect to Ortner, Thomas, Paul Hastings, andthe remaining claims against Kenner, the Tuckers fail to pin-point how any of the evidence in the record suggests that anyof the attorney-Defendants filed Death Row v. Tucker andInterscope v. Tucker for a purpose other than honoring theirclients’ wishes. The Tuckers have not shown, with respect tothese remaining claims, that the attorneys affirmatively knewthat the factual bases for the underlying suits to be false at thetime the suits were filed, cf. Morrison, 126 Cal. Rptr. 2d at752. Nor have the Tuckers shown that any attorney-Defendantcontinued to prosecute any of the remaining claims afterlearning that they were not supported by probable cause.Zamos, 87 P.3d at 810. Given this lack of evidence, the dis-trict court correctly concluded that no reasonable trier of factcould find that the attorney-Defendants, with the exception ofKenner’s claim for abuse of process, acted with malice whenthey filed the underlying litigation on behalf of Death Rowand Interscope.23

V.

Loss of Consortium

Mr. Tucker’s claim for loss of consortium was derivativeof his wife’s cause of action for malicious prosecution. Thedistrict court granted summary judgment in favor of all theKenner and Interscope Defendants, in part, on the basis thatMr. Tucker’s claim was tied to the malicious prosecutionclaims, which the court determined did not survive summaryjudgment. Were this the only basis for the court’s disposition

23The dissent provides no legal authority from a California court for itsassertion that a decision to file numerous claims is probative of malice.Dissent at 1835-36. Nor does the “two against one” posture of the underly-ing litigation, see id. at 1838, establish any triable issue regarding malice.


of this claim, reversal might well be warranted because wehave concluded that the malicious prosecution claim mustproceed as to Kenner. See Snyder v. Michael’s Stores, Inc.,945 P.2d 781, 785 (Cal. 1997) (“One spouse cannot have aloss of consortium claim without a prior disabling injury tothe other spouse.”).

However, the district court also reached the merits of Mr.Tucker’s claim and concluded on the limited evidentiaryrecord that, “the harm . . . is more akin to a loss of society andcompanionship than the type of longstanding and debilitatingimpairment to the relationship necessary to support a loss ofconsortium.” We can affirm the district court’s grant of sum-mary judgment on any basis supported by the record, and weagree.

To support a loss of consortium claim, marital spousesmust allege that their partner suffered an injury that is “suffi-ciently serious and disabling to raise the inference that theconjugal relationship is more than superficially or temporarilyimpaired.” Molien v. Kaiser Found. Hosp., 616 P.2d 813, 823(Cal. 1980); Anderson v. Northrop Corp., 250 Cal. Rptr. 189,195 (Ct. App. 1988) (same). The injury may be physical orpsychological, but psychological injury must “rise[ ] to thelevel of a ‘neurosis, psychosis, chronic depression, or phobia’[to be] sufficient to substantially disturb the marital relation-ship.” Anderson, 250 Cal. Rptr. at 195, quoting Molien, 616P.2d at 813.

[15] We agree with the district court that Mr. Tucker’s tes-timony does not raise a triable issue as to psychological injurysufficiently serious or disabling as to raise an inference thathis relationship with his wife was more than superficiallyimpaired. Therefore, the district court properly granted Defen-dants’ motion for summary judgement as to Mr. Tucker’s lossof consortium claims.


VI.

Conclusion

With the exception of the abuse of process claim where theTuckers raised a triable issue as to Kenner’s malice, the Tuck-ers did not produce evidence from which a jury could findmalice, which is a necessary element of the malicious prose-cution claim. Although Mrs. Tucker’s estate may be entitledto recover damages for malicious prosecution, the districtcourt appropriately granted summary judgment for the Kennerand Interscope Defendants with respect to Mr. Tucker’s causeof action for loss of consortium. We therefore affirm the dis-trict court’s grant of summary judgment in Tucker v. Inter-scope, No. 05-56045, and affirm in part and reverse in part thedistrict court’s grant of summary judgment in Tucker v. Ken-ner, No. 06-53376.

05-56045 AFFIRMED.

06-53376 AFFIRMED in part; REVERSED in part;REMANDED.

In 05-56045, Defendants shall recover their costs onappeal.

In 06-53376, the parties shall bear their own costs onappeal.

NOONAN, Circuit Judge, concurring and dissenting:

The legal question to be decided is whether Tucker pre-sented sufficient evidence to create a triable issue of materialfact as to whether Death Row and Kenner had sued her withmalice when they began and continued a suit against hercharging her with racketeering involving extortion, mail and


wire fraud; intentional interference with contract; and abuseof process, and whether there was sufficient evidence of mal-ice to go to a jury as to whether Interscope, Ortner, and Paul,Hastings had acted with malice when they began and contin-ued a suit against Tucker in which she was charged with con-spiracy, disrupting a contract, depriving Interscope ofproperty and extortion. The standard of review is that allinferences are to be drawn in favor of Tucker, the nonmovingparty. It is evident, I believe, that Tucker submitted sufficientevidence to defeat the summary judgments in favor of DeathRow Records, Interscope, Kenner, Ortner and Paul, Hastings.A statement of the facts, followed by a statement of the lawwill show the basis for this contention.

FACTS

The Cast of Principal Characters. The plaintiff, C. DeloresTucker (Tucker), was a person of prominence in the AfricanAmerican community, in the Democratic Party, and in theCommonwealth of Pennsylvania. In the 1970’s, she was Sec-retary of State of the Commonwealth — the first woman andthe first African American to serve in this office. She servedas Chair of the Democratic National Committee Black Cau-cus. She was the first African American president of theNational Federation of Democratic Women. She crossed thepath of the defendants by her concern over the popularity andpromotion of gangsta rap and the impact of gangsta rap uponthe behavior of black youths and upon the reputation of theblack community. In 1995, she was 68 years-old.

Dionne Warwick (Warwick) had an established reputationin rhythm and blues, soul, and soft contemporary music. War-wick’s public service included raising money for AIDSresearch, serving as the American Ambassador for Health inthe 1980’s, and acting as global ambassador for the UN’sFood and Agriculture Organization in 2002. Her musicreached a wide public and struck a note very different fromthat of gangsta rap, as in her signature song “Walk On By”:


If you see me walking down the streetAnd I start to cry each time we meetWalk on by, walk on byMake believe that you don’t see the tearsJust let me grieve in private ‘cause each time I seeyouI break down and cry

Death Row Records (Death Row), founded in 1991, is theproducer of gangsta rap and other music. Its revenues are esti-mated to have been $900,000 in 1993 and to have been$33,000,000 in 2002. It is currently in bankruptcy. Its co-founder and CEO in the period 1993-1998, when the eventsrelative to this litigation occurred, was Suge Knight. DeathRow signed some of hip-hop’s biggest stars, including TupacShakur, and dominated the rap industry in the mid-1990’s.The company came to represent the West Coast rap move-ment in the emerging East Coast-West Coast rap rivalry thateventually led to the murders of Tupac Shakur in 1996 andTupac’s East Coast rival rapper, Biggie Smalls in 1997. At thetime relevant to this litigation, Death Row had a distributionagreement with Interscope Records.

Marion “Suge” Knight, Jr. (Knight) was 28 years-old in1993. He had been charged with and pled no contest to autotheft, possessing a concealed weapon, attempted murder,assault, and battery with a deadly weapon. He was convictedof assault in 1992 and placed on probation. In 1996, he wassentenced to nine years in prison for parole violation.Knight’s criminal career after dates relevant to the litigationis omitted.

Interscope Records was a California general partnershipconsisting in 1993-1995 of Interscope Records, Inc. andAtlantic Ventures, an affiliate of Time Warner.

Time Warner is a media and communications companywhose principal place of business is New York. Its total assets


in 1995 were $3.72 billion. At the start of the underlying suits,Time Warner owned a 50 percent share of Interscope Recordsthrough its affiliate Atlantic Ventures.

David Elliot Kenner (Kenner) was in 1995 a 53 year-oldlawyer, a graduate of the law school of the University ofSouthern California, engaged in the solo practice of law inEncino, California.

Charles B. Ortner (Ortner) was 50 years old in 1995, hadgraduated from Brooklyn Law School, and was an attorneywith Paul, Hastings.

Paul, Hastings, Janofsky & Walker (Paul, Hastings) is alarge law firm headquartered in Los Angeles and has 17 otheroffices around the world employing 1200 attorneys.

Events. In 1993, when Tucker was the Chair of the NationalPolitical Congress of Black Women (the NPC), she listenedto the plea of Warwick and Melba Moore, another well-known African American performer, to do something about“what’s going on in Hollywood about our young people call-ing us whores and bitches and disrespecting and denigratingAfrican American women.” Tucker followed up by checkingon whether this stuff was sold to children. If it was, she wasgoing to “put my marching shoes back on that I marched withDr. Martin Luther King hand in hand in Selma.” The stuffwas sold to children. Tucker began marching.

As president of the NPC, Tucker enlisted Warwick, Moore,Voncier Alexander, and Terri Rossi to form an EntertainmentCommission, whose Mission Statement ran as follows:

The goals of the National Political Congress ofBlack Women, Inc. (NPCBW) Entertainment Com-mission (NPCBW Entertainment Commission) arethreefold:


• Seek to eliminate internal blockage in the indus-try that currently and most obviously preventsAfrican Americans from the achievement ofequal opportunities as artists and those positionsof decision making.

• Mobilize African Americans in the industry tojoin the struggle to resolve critical issues affect-ing African American communities, particularlyin the areas of education and health, where somany serve as role models and spokespersons.

• Offer strategies and solutions of reshaping andmaintaining positive images to preserve the dig-nity and heritage of our youth . . . instead of con-tinuously exposing our youth to negative mediathat distort their images of male/female relation-ships, undermines the stability of our families,communities and nation by encouraging violence,abuse and sexism as acceptable behaviors, andperpetuates the cycle of low self-esteem of Afri-can American youth.

Tucker’s march had just started. She demonstrated outsidea Tower Records store to protest its sale of albums of gangstarap to minors. She gained support for her cause from a broadspectrum of national leaders, including William Bennett, JoeLieberman, Tipper Gore, Bob Dole, and Sam Nunn. She testi-fied before the Federal Communications Commission andbefore committees of Congress on the harm done by gangstarap. She attended a Time Warner stockholders’ meetingwhere she offered the corporation’s executives $100 if theywould read gangsta rap aloud to the meeting. In short, Tuckerusing the skills and smarts of a woman knowledgeable aboutpolitical endeavors and media responses, took advantage ofthe democratic processes available to aroused citizens, andmade herself a terrific nuisance to a principal producer ofgangsta rap, Death Row.


On July 7, 1995, the NPC convened its biennial conventionin Seattle. Suge Knight and Kenner as Death Row’s lawyermet with Tucker and others. They discussed the formation ofa distribution company owned by blacks that could distributeDeath Row Records if Suge Knight eliminated the gangstarap.

On August 7, 1995, Tucker and others drafted a letter forKnight’s signature, memorializing the July 7 meeting. In theletter, Knight stated that Death Row “will cease and desistfrom the production and distribution of misogynist, obsceneand pornographic music,” a preliminary condition forKnight’s authorization of NPC “to negotiate an acceptablecontract relationship with Time Warner Inc. regarding theproduction and distribution of our music products.” This letterwas unsigned and delivered to Knight. The next day, August8, Warwick arranged a meeting attended by about ten persons,some of them NPC members, not including Tucker, and fourpersons from Time Warner. Michael Fuchs, an executive ofWarner Music, wanted to know if Knight had a contract withInterscope to distribute his records. Fuchs had flown fromNew York to meet Knight and “the purpose of the meetingwas for [Fuchs] to sort of grill Suge Knight on his involve-ment or his relationship with Interscope.” Knight had beeninvited, but wasn’t there. He telephoned repeatedly from11:00 A.M. to 4:00 P.M. to say he was on the way. Knightspent the day with his lawyer, Kenner, and James Iovine, thenthe President of Interscope Records.

The following day, August 9, Kenner drafted a letter signedby Kenner and Knight and addressed to Dionne Warwick. Theletter rejected the draft letter sent to Knight, affirmed his posi-tion to stand by his music and musicians, and stated thatTucker had misunderstood him or was misrepresenting whathe had said. The letter also rejected what it described as “Mr.Fuchs’ offer, as conveyed to Mr. Knight, of an $80,000,000advance and to provide him with two studios if he wouldagree to sign directly with Time Warner.”


Kenner then conferred with Ortner, counsel for Interscope.On August 15, 1995, Ortner filed a complaint on behalf ofInterscope against Tucker in the Central District of California.The complaint alleged that beginning in mid-1995, for herown “personal and financial gain,” Tucker “together with oth-ers whose identities are [ ] unknown,” engaged in a conspir-acy to destroy Interscope by “committing extortion, threats,and other unlawful acts.” Interscope’s partner, the Time War-ner affiliate, was also named but characterized as “a nominaldefendant.”

The first claim of the complaint was that as a result ofTucker’s actions, “the contractual relationship between Inter-scope and Death Row Records has been disrupted.” The sec-ond claim sought a preliminary and permanent injunctionagainst these acts. The third claim was for such injunctionsagainst Tucker attempting to induce Time Warner and itsaffiliate Atlantic Ventures to breach their fiduciary duty toInterscope. The fourth claim sought similar injunctionsagainst Tucker engaging in unfair business practices andunfair competition, by reason of which “Interscope hasincurred irreparable harm and has been deprived of its prop-erty rights.” Compensatory, exemplary, and punitive damageswere sought on each claim, along with reasonable attorneysfees. The complaint carried the name of three lawyers and thefirm name of Paul, Hastings. It was signed in Ortner’s name.

Two days later, on August 17, 1995, Kenner on behalf ofDeath Row also filed in the Central District a complaintagainst Tucker; the NPC; Time Warner; the Warner MusicGroup; Michael Fuchs; and Gerald Levin for “multiple viola-tions of the Racketeer Influenced and Corrupt OrganizationAct (RICO), 18 U.S.C. § 1961-68, as well as various otherviolations of federal and state laws.” The allegations againstTucker were stated to be against her as an individual and as“a representative or officer of [the NPC].” Fuchs was identi-fied as chairman of Warner Music and Levin as chairman ofTime Warner. The defendants were alleged to be in a conspir-


acy “to enrich the Defendants themselves.” The defendantswere said to have engaged in their unlawful scheme “[f]or thepast 13 months,” that is, since July, 1994. Their acts beganwith “a smear campaign.” “This campaign, primarily directedtoward Defendant TIME WARNER, was and is an apparentattempt to induce action through political pressure.” Tucker“did not disclose her ulterior motive to replace and supple-ment Interscope Records as the distributer of the recordedoutput of Death Row Records. This commercial goal was hid-den and obscured by Defendant TUCKER.” Among the actscharged against Tucker personally was her picketing of aTime Warner stockholders’ meeting, her denouncing TimeWarner “for their support of music containing ‘explicit’ lyr-ics, and its alleged denigration of African-American women.”Tucker’s recruitment of William Bennett and Bob Dole to hercause was also alleged against her.

The first cause of action set out was racketeering in viola-tion of 18 U.S.C. § 1962(b) and (c). Tucker, the NPC “andothers” unknown were said to have formed an enterprise toestablish “a record distribution company controlled by Defen-dant TUCKER.” The enterprise was attempting to secure itsobjective by a “pattern of racketeering activity.” The predi-cate criminal acts included extortion, that is, an attempt toobtain property from Death Row Records “by a wrongful useof force or fear against Knight” resulting in “actual,” althoughunknown, damages to Death Row. Mail fraud in violation of18 U.S.C. § 1841 was another part of the pattern, a crime car-ried out by the draft letter proposed for Knight’s signature onAugust 7, 1995. Wire fraud in violation of 18 U.S.C. § 1343was also part of the pattern, the fraud consisting in unspeci-fied uses of “the wires, radio, or televison communications”with the result of actual, but unknown, damage to Death Row.The defendants were further charged with criminal interfer-ence with interstate commerce in violation of 18 U.S.C.§ 1951-2, a crime alleged to have been committed simply “bytransporting persons and things in interstate commerce” infurtherance of their scheme. A final element of the unlawful


pattern was the conspiracy of the defendants to achieve theirunlawful end.

The second cause of action alleged conspiracy in violationof 18 U.S.C. § 1962(d) and sought treble damages for unspec-ified harm. The third cause of action alleged a “conspiracy tointerfere with advantageous business relationships” broadlysaid to be “in violation of federal and state law.” The fourthcause of action was for intentional interference with contractand prospective business advantage. The fifth cause of actionmade “extortion” its gravamen. The sixth cause of action was“unfair business practices”; the seventh was “abuse of pro-cess,” by the defendants “threatening to fabricate and pursuea course of conduct designed to cause criminal and civil lia-bility to Knight,” a crime amounting to “wrongful use of thecriminal and civil justice system.”

Death Row sought an injunction against all the defendants,treble damages for the first and for the second causes ofaction, and compensatory, exemplary, and punitive damagesfor all causes of action.

In October 1995, two months after the litigation began, anad appeared in The Source, a hip-hop magazine, listing twelveblack freedom fighters such as Martin Luther King, Jr. andNelson Mandela. To this list a thirteenth name had beenadded, that of Tucker. A red line was drawn through thisname. At the bottom of the ad were two quotes. The first wasattributed to Martin Luther King, Jr.: “When we let freedomring, . . . we will be able to speed up that day when all ofGod’s children . . . will be able to join hands and sing . . .‘Free at last! Free at last! Thank God Almighty, we are freeat last.’ ” A second quote followed under this first one.Underneath this paragraph and parallel to it were these words:“Whether it’s freedom for our people or freedom for our peo-ple to say what’s on their minds the fight lives on . . . .” Fol-lowing this quotation, its author was identified as “SugeKnight, CEO of Death Row Records.


On October 4, 1995, Kenner wrote counsel for Tucker, stat-ing “Death Row, because of the actions of the parties, includ-ing your clients, has been damaged and Death Row Recordshas every right to proceed to have their case heard withoutdelay.” Death Row and Interscope made demand for the pro-duction of documents including “without limitation, any com-munication, notes of conversations, correspondence,contracts, proposals, drafts and/or memoranda . . . that reflect,refer, or relate to Interscope, Death Row and/or rap music”and “[a]ll of your personal and business telephone records,logs, messages and related documents, for the period of Janu-ary 1, 1995 to the present.” In their capacity as plaintiffs, theyalso took Tucker’s testimony for four days of depositions. Amonth later, they took another four days, so that the total testi-mony came to 1,700 pages contained in eight volumes. In1996, approximately thirteen months later, they took anotherthree days of depositions from Tucker, adding three more vol-umes to the total.

In February 1996, Death Row produced and Interscope dis-tributed an album sung by Tupac Shakur. One song, “How DoU Want It?” asked:

Now tell me is it cool to fuck? Did you think I came to talk?

The rapper went on in the course of his song to say:

Delores Tucker, yous a muthafucka,Instead of trying to help a nigga youDestroy a brotha, worst than the others,Bill Clinton, Mr. Bob Dole, you too oldTo understand the way the game’s told.You lame soul, I got to hit you with the high facts.When some release makin’ millions . . . .

A second song on the album, “Wonda Why They Call UBitch,” concluded:


Dear Ms. Delores Tucker, you keep stressin’ me,Fuckin’ with a motherfuckin’ mind.I figured you wanted to know, you know,Why we call them ho’s bitches.Maybe this might help you understand.It ain’t personal.It’s strictly business, baby, strictly business.So if u wonda why we call u bitchU wonda why we call u bitchIf u wonda why we call u bitch,U wonda why we call u bitch.

Trial was finally set, for October 27, 1998. On June 1,1998, Death Row filed a notice of motion to dismiss its entireaction. The reasons given were that Death Row and Inter-scope had severed their relationship and Death Row no longerneeded injunctive relief to protect it and that investigation hadshown that Tucker and the NPC lacked money to satisfy thedamages to which Death Row was entitled. Interscope alsomoved for dismissal of its action. On June 18, 1998, themotions were granted.

PROCEEDINGS

Judge Paez’s opinion accurately states the beginning andcourse of the two cases now consolidated for decision. Tuckerdied at the age of 78 in 2005; her husband, William Tucker,is now her personal representative. Death Row is in bank-ruptcy, and its bankruptcy estate is being managed by a court-appointed trustee.

The district court’s ruling in the Kenner case was as fol-lows:

While the court notes that Kenner lacked probablecause to pursue a claim of abuse of process in theunderlying litigation, the evidence Plaintiffs offer inaddition to this finding is insufficient to show that


Kenner acted with malice. Plaintiffs have offered noevidence to support their allegation that Kennerknew no threats were levied against his client. More-over, Plaintiffs’ assertion is inconsistent with Ken-ner’s deposition testimony as well as Mrs. Tucker’sadmission that she did contact the Justice Depart-ment and the FBI regarding Death Row Records.Lastly, Plaintiffs’ allegations about Kenner’s con-duct during the course of litigation amount to noth-ing more than mere speculation and fail todemonstrate actual hostility or ill will. A reasonablejury could not return a verdict in Plaintiffs’ favor onthis evidence. As such, summary judgment is war-ranted as to this issue.

The district court added:

Defendant Kenner also seeks clarification as to thecourt’s ruling regarding probable cause and favor-able termination. The court advises Defendant thatgenuine issues of fact existed as to both issues whichprecluded a finding as a matter of law in his favor.

In the Interscope case, the court found that genuine issuesof material fact remained as to Interscope Records’ probablecause for inducement to breach contract and inducement tobreach fiduciary duty as well as Death Row’s probable causeto file claims for RICO violations, extortion, and abuse ofprocess.

ANALYSIS

In these diversity cases, it is uncontested that California lawshould govern. We consider them separately except to notethat both suits brought by the defendants against Tucker ter-minated in her favor. A necessary element of a case for mali-cious prosecution is judgment against the plaintiffs in the suitsthat they maliciously launched. Under California law a volun-


tary dismissal accepted by the court constitutes such a judg-ment even though the phrase “with prejudice” is not added tothe dismissal. Fuentes v. Berry, 38 Cal. App. 4th 1800, 1808(1995).

Tucker v. Kenner. On the evidence presented by Tucker, ajury could conclude that Kenner lacked probable cause andfiled and pursued Death Row’s action against Tucker and theNPC with malice.

First, as to the objective lack of probable cause: The districtcourt has already ruled that there are triable issues of fact asto probable cause. Death Row and Kenner have not appealedthat ruling. It may, therefore, seem to be a work of superero-gation to review the counts of the Death Row complaint interms of their lack of any foundation in fact. That, however,is not the case. Lack of probable cause can be an element inthe proof of malice. Even more significantly, knowledge ofthe lack of probable cause is itself proof from which a jurymay infer malice. Swat-Fame, Inc. v. Goldstein, 101 Cal.App. 4th 613, 634 (2002). Reasons exist, therefore, to reviewthe lack of probable cause for many of the claims of the quon-dam plaintiffs and the likelihood that the claims were know-ingly brought without cause.

First, after three years of investigation, discovery, anddeposition-taking, Kenner voluntarily withdrew Death Row’saction against Tucker, including the claims that she had com-mitted a variety of federal and state crimes. A jury could rea-sonably infer that the stated reason that Tucker and the NPCwere judgment-proof was window-dressing meant to disguisethe absence of any fact supporting the outrageous claimsasserted. Second, a jury could make an inference from the dif-ference between the Interscope and Death Row complaints.Although both companies and their lawyers were in commu-nication in preparing their respective suits, and although bothcorporations had the same information about Tucker and thesame reasons to hate her, Interscope did not charge Tucker


with racketeering. If there were any evidence of racketeeringin possession of Death Row, a jury could infer that it wouldhave been shared with Interscope. The absence of racketeer-ing charges in Interscope’s complaint would permit a rationaltrier of fact to conclude that, more probably than not, DeathRow and Kenner knew no facts to support their racketeeringclaims. Third, a jury could also infer from the extraordinaryvagueness of several of Death Row’s criminal charges thatKenner was merely using boiler plate without possession ofany facts on which to act. A trier of fact could consider, forexample, the failure to identify any actual harm caused by theconduct complained of; the utterly unspecified reference to“uses” of “the wires”; the strange charge of criminal interfer-ence in interstate commerce by the transport of “persons andthings.” Fourth, a jury could also infer that the racketeeringcharges against the NPC were without any foundation andwithout any purpose except to make out Tucker as a schemingand faithless fiduciary who would manipulate an educationalgroup for her own private profit.

Fifth, the district court has ruled as a matter of law thatKenner lacked probable cause to bring the claim for abuse ofprocess. This ruling has not been appealed and is the law ofthe case. A jury could infer that if Kenner lacked probablecause so did Death Row. Further, a jury could infer that Ken-ner knew there was no probable cause for this claim. As alawyer, Kenner must have known that an abuse of process “isan act done in the name of the court and under its authorityfor the purpose of perpetrating an injustice,” and thus, theessence of an abuse of process claim “lies in the misuse of thepower of the court.” Meadows v. Bakersfield Sav. & LoanAss’n, 250 Cal. App. 2d 749, 753 (1967). Tucker had broughtno suit against his client. A jury could well infer that theknowing assertion of this claim manifested malice.

Similarly, an action for intentional interference with con-tract requires an actual breach or disruption of the contractualrelationship. Quelimane Co. v. Stewart Title Guar. Co., 960


P.2d 513, 530 (Cal. 1998). The absence of any evidence of anactual breach could allow a jury to infer that Kenner know-ingly brought and continued Death Row’s actions withoutprobable cause.

Finally, that the August 7, 1995 letter authorized the NPC,and not Tucker, to “negotiate an acceptable contract relation-ship” on behalf of Death Row suggests that Tucker could nothave harbored a ulterior motive of personal enrichment asalleged in Death Row’s complaint. A jury could infer fromthis letter that Kenner had no probable cause and thereforeharbored malice in attributing hidden motives to Tuckerwhere no such evidence existed.

As to evidence from which a rational trier of fact couldinfer malice, Swat-Fame, 101 Cal. App. 4th at 634, shows thatthe knowing bringing of a baseless claim is sufficient for ajury to conclude that a case was brought maliciously. Second,the charges against Tucker evince hatred. A 68 year-old civicleader is charged with a spate of offenses that would beappropriate to an indictment of a mafioso. She is an extortion-ist and a racketeer. She has organized a racketeering enter-prise to enrich herself. Malice gleams from Death Row’scomplaint.

Third, the allegations in the complaint specifically set outthe criminal conduct charged to Tucker as beginning in 1994.In their brief on appeal the defendants acknowledge thatTucker had a perfect right under the First Amendment to agi-tate against gangsta rap and to ask others to join in her cause.That is precisely what she was doing in 1994. Not even ashred of evidence exists to show that this veteran of the civilrights movement was acting for her personal profit on anyoccasion in 1994. What Tucker was doing, both in 1994 andin 1995, a jury could find, was what Bob Dole, Tipper Goreand Joe Lieberman were doing — telling Time Warner and itsaffiliate, “Get this stuff off the air. You should be deeplyashamed. You are maligning women. You are promoting law-


lessness. You are denigrating an entire ethnic community. Forheaven’s sake and for the sake of your own reputation, get outof it.” Warwick, a deeply respected singer, had taken the lead.Yet Tucker alone was charged with racketeering and a patternof racketeering reaching back to the period of her acknowl-edged First Amendment activity. Her profit-seeking motive isalleged to have been “hidden.” A jury could conclude that ahidden motive was an imagined motive, a motive maliciouslyconjured up to bolster Death Row’s complaint. Only mali-cious minds, a jury might decide, could so construe her tough-minded and democratic strategy.

Fourth, former education Secretary William Bennett isnamed as a recruit of Tucker. His recruitment is an assertedpart of the pattern of racketeering. The dogged determinationto do in Tucker is manifestly malicious when her wooing ofa senior American political leader is asserted to constitutecriminal behavior.

Fifth, the complaint alleged that Levin, the CEO of TimeWarner, and Fuchs, the CEO of Warner Music, were engagedin the racketeering conspiracy to enrich Tucker. The sheerimplausibility of this claim, unsupported by any specific alle-gations, could lead a jury to infer malice. Hate-filled malig-nancy, a jury could infer, had led to the fantastic suppositionthat a multi-billion dollar corporation sought to enrich Tuckerby cooperating in her racketeering.

Sixth, a jury could infer malice from the way Death Rowand its counsel conducted the case — first asserting a need fora prompt trial but at no point moving for a restraining orderor preliminary injunction; besieging Tucker with an oppres-sive demand for discovery; harassing Tucker with days ofdeposition-taking, while taking very little deposition testi-mony from Warwick, who participated in the August meeting;and taking no depositions from Fuchs and Levin, alleged tobe Tucker’s partners in crime.


Seventh, three publications outside of the Death Row com-plaint shed light on Death Row’s motives. The first is the adin The Source. Tucker believed that the ad called for herdeath. She was deposed as to the pain it caused her and theprecautions she felt obliged to take to prevent being killed. Nodirect evidence was submitted establishing that Death Rowpaid for the ad. A jury could take into account two facts: (1)The concluding quotation was ascribed to Knight in his cor-porate capacity. This quotation is paired with the quotation ofMartin Luther King, Jr.; (2) Knight had reason to hate Tucker.This full page ad improbably put Knight on par with King,pointedly identified Knight as Death Row’s CEO, and markedTucker, at least symbolically, for destruction. The inferencecould rationally be drawn that the ad was inserted in TheSource by Death Row and was significant evidence of its mal-ice as it continued its suit against Tucker. The two songsmade by Tupac under the Death Row record label during thelitigation demonstrate the strongest antipathy to Tucker, whois assailed in vile language. A jury could well conclude, If thisevidence does not exhibit malice, what would?

Kenner is not personally responsible for the ad or the lyrics.He is responsible for setting out the malicious imaginings ofa client with such hate, or so a jury could conclude. Kennercould be held responsible for the irresponsible assortment ofcriminal charges in the complaint against Tucker that hedrafted and filed. Despite his extensive experience with thecriminal law, Knight does not appear to have had the educa-tion necessary to conceive of the RICO charges and to expressTucker’s alleged crimes in words fitted to the statutory provi-sions invoked. A jury could well conclude that the specialmalice of the racketeering allegations owed their origin andpresentation to the knowledge and skills of Kenner. An attor-ney cannot escape liability by saying, “I was only a hired gun.My client and its CEO may have been malicious, but I wasnot.” Kenner could be found to have begun and continued thesuit sharing the malice of his client and to have expressedmalice in the drafting of the complaint.


It is argued that the ad in The Source and Tupac’s lyrics arenot evidence of malice at the start of the suit because theyappeared after the suit was started. For two reasons, this argu-ment is unconvincing. First, a jury could well infer that thehatred of Tucker displayed in the ad and in the lyrics was nota sudden development arising out of the suit, but the overtdemonstration of what had smouldered and been fueled byanger at Tucker’s campaign against gangsta rap. Second, it isgood California law that malice in continuing a lawsuit is asactionable as malice in originating it. Zamos v. Stroud, 87P.3d 802, 810 (Cal. 2004). The ad and the lyrics demonstratemalice in the prosecution of the suit.

It has been suggested that the ad can be read as the personalact of Suge Knight, not of Death Row. Again that argumentcannot be sustained. First, Knight’s corporate title was usedto identify him. Second, Knight — as far as this record shows— was Death Row. When he appears in the record, he is bar-gaining, complaining, negotiating for Death Row without ref-erence to its directors or to any corporate control. He is it, orso a jury could reasonably infer.

It has been suggested that Death Row is not responsible forTupac’s lyrics. The suggestion is one possible reading of theevidence. But a jury could reasonably infer that the extraordi-narily pointed references to Tucker did not arise out of anyspecial animus against her on Tupac’s part but were designedby Death Row and its CEO to bring their adversary into apublic pillory.

Tucker v. Interscope, Death Row, Ortner, and Paul, Has-tings. Tucker sued Interscope, Death Row, Ortner and Paul,Hastings on five grounds that have been winnowed in thecourse of its action and an appeal consists in a single claimof malicious prosecution. Again, it is desirable to examine theelements of the claim that consist in the lack of probablecause as well as the presence of malice. A jury could inferDeath Row’s malice and lack of probable cause from the


same evidence showing Kenner’s malice and lack of probablecause, as discussed earlier. What of the acts of Interscopetaken by itself and of the lawyers representing Interscope inthe litigation against Tucker?

Interscope’s complaint alleged that Tucker was a conspira-tor engaged in extortion and other unlawful acts for her ownprofit. The few facts stated in the complaint focused on hazyand inconclusive accounts of the July 1995 meeting and onaccounts of the August 1995 meeting held by Warwick fromwhich Knight, Kenner, and Tucker were all absent. A jurycould infer that not only was probable cause lacking for thesebaseless charges, but that Interscope and its lawyers, Ortnerand his firm, knew that the charges were baseless.

Second, a theory of both complaints was that Tucker wasusing her leverage with Time Warner, no doubt sensitive toadverse publicity, to break Interscope’s contract with DeathRow. In fact, however, in September 1995, less than twomonths afer the complaints were filed, Time Warner termi-nated the only investment it had in the joint venture withInterscope. Despite the absence now of any channel by whichTucker could affect Death Row’s relation to Interscope, thesuit continued for three years without a foundational fact.

Third, the plaintiffs lined up against Tucker were DeathRow and Interscope. Yet she was alleged to be disruptingtheir relation. The improbability of the two plaintiffs being setagainst each other by Tucker would permit a jury to infer thatthe suits were continued after they had lost even a smidgen ofprobability.

Fourth, the claim that the Interscope-Death Row relation-ship had been disrupted was palpably untrue. The contractbetween them had not been breached. Their counsel, Ortnerand Kenner, worked hand and glove together, or so the jurymight infer from the coordination of the complaints. The alle-gation that Interscope had “incurred irreparable harm” and


had been “deprived of its property rights” was unsupportedand inferably known by the Interscope attorneys to be untrue.

Conclusion. The evidence in this record, interpreted as itmust be, in favor of the nonmoving party is sufficient torequire the reversal of summary judgment for Kenner, DeathRow, Interscope, Ortner, and Paul, Hastings. As a matter oflaw, their cases against her ended with prejudice. The law ofthis case is that there are triable issues as to probable cause.Tucker’s evidence affords multiple instances where a jurycould infer, from what Death Row, Kenner, Interscope, andOrtner said and did, that the suits brought and maintainedagainst Tucker were knowingly and therefore maliciouslyfiled without probable cause and were prosecuted with malicefor three years in an oppressive way, long after a scintilla ofcause had been extinguished.

Two issues appear to divide the court. The first is whethermalicious prosecution can be shown by malicious acts by adefendant performed after the defendant has brought the law-suit that the plaintiff complains of. Judge Paez’s opinionseems to suggest that malice in the mind of the defendant canonly be shown by what is alleged in his complaint. That viewof the law is mistaken. Malice may be shown by maliciousacts subsequent to the complaint in the continuation of thelawsuit. See Zamos, 87 P.3d 802; Del Rio v. Jetton, 55 Cal.App. 4th 30, 36 (1997).

In Zamos, the court listed the elements of a suit for mali-cious prosecution, including the requirement that the suit was“initiated with malice.” Zamos, 87 P.3d at 807 (citations omit-ted) (italics in original). The court noted that the defendantsin the case before it argued that continuing to prosecute a law-suit discovered to lack probable cause did not constitute thetort of malicious prosecution. Id. The court rejected the defen-dants’ argument. Its holding stated: “We conclude an attorneymay be held liable for continuing to prosecute a lawsuit dis-covered to lack probable cause.” Id. at 803. As in Swat-Fame,


knowledge of the lack of probable cause (in the court’s phrase“discovery” of this lack) supplies the malice that supports thetort.

The second division is on whether knowing lack of proba-ble cause may constitute proof of malice. Stressing the objec-tive character of probable cause, Judge Paez’s opinionsuggests that absence of probable cause is not relevant to mal-ice. But when a suit is brought without probable cause and theallegator knows that he has no probable cause, a window isopened to the mind of the allegator. California law clearlystates that although lack of probable cause alone does not sup-port an inference of malice, “malice may still be inferredwhen a party knowingly brings an action without probablecause.” Swat-Fame, 101 Cal. App. 4th at 634 (citation omit-ted) (italics in original). Knowing that he has no basis forwhat he alleges, the allegator manifests malice in the hatefulacts he imagines and attributes to the enemy he is pursuing.

In discussing Kenner’s malice in charging Tucker withabuse of process, Judge Paez observes: a “fact-finder couldreasonably infer from Kenner’s drafting of the complaint[charging Tucker with abuse of process] that he did notbelieve the claim was valid when filed, or that the claim wasinstituted for an improper purpose.” I agree with this reason-ing, concur in Judge Paez’s conclusion as to the vitality ofTucker’s claim for malicious prosecution in Kenner’s chargeof abuse of process and wonder why the same rule does notapply to the other claims advanced by the defendants whereinferably they know they had no probable cause. I do notunderstand how this court, years after the original litigation,is capable of determining the state of mind of the defendantshere. That is a question of fact. As a question of fact it is fora jury to decide.

In both our cases, an experienced fighter for civil rights,acting to defend her community, was charged with extortion,with seeking to enrich herself, and exploiting her own organi-


zation for her profit. Further, in the case brought by Kennershe was accused of committing major federal crimes nonexis-tent in fact and so vaguely alleged as to show on the face ofthe complaint that the lawyer had conjured them up or simplyfilled in a blank form. The court is in no position to concludethat the lawyers and their clients believed that these chargeswere true, rather than unscrupulous inventions. Indeed almostanyone would doubt that sophisticated lawyers could haveknown anything except that the charges were false. In anyevent, it is not for us now to decide this question, but to allowa jury to determine whether the lawsuits against Tucker werebrought without probable cause and with knowledge of theabsence of probable cause and therefore with malice. A courtof the United States presented with a record as the one beforeus should not walk on by.


and through william tucker as d.c....

Documents